Dicey’s Formulation of Rule of Law

I. General idea of the term Rule of Law

At its essence, the phrase Rule of Law, literally means that the law should rule, which means the law is superior to any other rule or ruler. The framework under which the state functions are provided by this rule of law and its ultimate goal is to secure an individual’s life, liberties and property.

The phrase derived from French is “la Principe de legalite” translates to the Principle of Legality, clearly means a government based on laws and legitimacy and not on men or any despotic, capricious concepts. “Rechtsstaat” is a German concept based on the same ideology of a codified, professional legal system in a state based on law, influenced a large part of the European continent.

According to Black’s Law Dictionary, “rule of law” means legal principles of day-to-day application, approved by the governing bodies or authorities and expressed in the form of a logical proposition.

II. The trajectory of the Rule of Law

When talking about the formulation of Rule of Law it is essential, to begin with, the greatest intellectual Greek philosopher Aristotle. Aristotle was the trailblazer of political philosophy, and out of his many topics of exploration, tyranny and the rule of law was one in one of his most famous works, “The Politics”.

Surrounding this topic, he doesn’t simply talk about the rule of law against power but also the role of power in initiating the rule of law and the constitution. Even though he treats this concept as an imminent feature of any democracy but at the same time, he believes in the moderation of it as laws may become overtly dominant too.

Aristotle, in other words, holds both that the rule of law, and especially, that “the constitution, moderates the rule of men, and also that the rule of men moderates the rule of law, including the constitution.”[1] He wrote that “law should be the final sovereign”. Neminem oportet esse sapientiorem legibus: no man, out of his own private reason, ought to be wiser than the law, which is the perfection of reason.

Next, we come to the 15^th Century wherein Sir John Fortescue, an eminent English political, legal and constitutional writer. His major work is based around the Laws of Nature and his most famous work remains the “The nature of the law of nature”.

For Fortescue, he believed all law ought to be equal and good. In his constitutional writings, De Laudibus Legum Angliæ is a dialogue between Fortescue and Prince Edward, wherein he urges the prince that along with his studies in martial exercises he must perfect himself in the study of law too.

This dialogue touches on multiple aspects, like the jury system and how the English King may not change laws autonomously. And another one is The Governance of England, which talks about “the difference between an Absolute and a Limited monarchy”.

Moving on to the early modern times of John Locke and James Harrington, Locke said in his most sought-after work, “Two Treatises on Government”, in the second treatise argues holding a similar idea like Aristotle of going against the law when it is needed in time.

In his words “where-ever law ends, tyranny begins, if the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed”[2].

James Harrington, too drawing from Aristotle’s ideas, talks in his work Oceana about the empire of law and not of men, which fundamentally point to the fact that law is above all and that all men are equal under the law.

Montesquieu comes next with his concept of separation of powers to have a mixed and balanced constitution of power. This is interlinked with the Rule of Law as it talks about how authority cannot exercise extensive and arbitrary power that transcends the law.

And finally, but not the last of the thinkers to study this, comes Albert Venn Dicey, a British jurist, whose name is popularized with the phrase “rule of law” as used in his book “An Introduction to the study of the law of the constitution”1885.[3] ‘s explanation of the rule of law has three facets.

• The supremacy of Law or the absence of an Arbitrary power – in his book, he writes, “in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative or even of wide discretionary authority on the part of the government.”[4]

This means that the existence of arbitrary, unproven wrongdoing is not to be penalized. In giving an example of this presence of arbitrariness in France during the 1700s he talks about the famous author Voltaire who had a brush with the ambiguous authority multiple times for and was sent to the Bastille (the French prison) for the wrongs he did not commit.

In the simplest words, this means that no one should be punished unless he has breached the law. The law grants individual freedom free of the contraventions of the government or other executives. Thus, the state is bound by law.

• Equality before the law – he wrote that “when we speak of the rule of law as a characteristic of our country, not only that with us no man is above the law but (what is a different thing) that here every man whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals”[5]

This essentially talks about equality before law through the unjust, equal application of the law to all. According to Dicey, every person, from the prime minister to a constable or a tax collector, has the same duty and responsibility as any other citizen.

• The Constitution is the result of the ordinary law of the land- The third one which he claims is of a different sense, is “ the predominance of the legal spirit may be described as a special attribute of English Institutions.

We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution( as for example, the right to personal liberty or the right of public meetings) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts; whereas under many foreign constitutions, the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of the constitution.”[6]

This meant that ensuring and protecting the citizen’s civil liberties and human rights is done best by this ordinary law that must be adhered to. When individual rights are violated, they make seek redressal through this law that is mechanized for them.

III. Provisions and Precedents that enshrined the Rule of Law

Currently, the idea has been modified into another result expressing that the authority holders must have the option to legitimately justify that their exercise of the power is lawfully substantial and socially just. Endeavours to indicate the significance of the Rule of Law generally advance to qualities and purposes that the Rule of Law serves.

In the first place, the Rule of Law ought to ensure against anarchy, then it ought to enable individuals to plan out their activities in a way where they know the consequences of their actions, whether they are legal or not and finally, should ensure against arbitrariness which is the main aim of it.

The oldest case refers to the battle against the King, wherein the then Chief Justice – Sir Edward Coke, in the Reign of James I, kept up effectively that the King ought to be under God and the Law, and he built up the primacy of the law.

In India, the principal case which began a discussion about Rule of Law was Shankari Prasad v. Union of India[7], where the subject of amendability of principal rights emerged. The inquiry waited and in the wake of judiciary and government, and at last, settled in Kesavananda Bharati v. State of Kerala[8]. In this case, the Hon’ble Supreme Court held that the Rule of Law is the “fundamental structure” of the Constitution.

The Hon’ble Supreme Court overruled Golak Nath’s case[9] and held that Parliament has wide powers of revising the Constitution, and it stretches out to every one of the Articles, yet the altering power isn’t boundless and does exclude the ability to pulverize or annul the Basic structure of the Constitution.

There are suggested restrictions on the intensity of amendments under Art 368, which the Rule of Law enforces. Inside these points of confinement Parliament can revise each Article of the Constitution. Justice H R Khanna assumed an indispensable job in saving the Rule of law in spite of the fact that he concurred against the majority.

• Writ of Habeas Corpus

Under the idea of habeas corpus, people who are denied their liberty have the option to challenge the legitimacy of their arrest or detainment through the judiciary. This right is presently embodied in worldwide human rights standards. It might be practised through the habeas corpus procedure in nations that exercise the Common Law framework or through the ordinary procedure. It may even go for appeal or retrial in these countries.

The famous habeas corpus case, ADM Jabalpur v. Shivakant Shukla[10] is one of the most significant situations with regards to the rule of law. For this situation, the inquiry under the court was ‘whether there was any standard of law in India other than from Article 21’. This was in the suspension of the implementation of Articles 14, 21 and 22 during the emergency.

The appropriate response of most of the bench was negative. But, Justice H.R. Khanna contradicted from the majority and saw that “Even without Article 21 in the Constitution, the state cannot deny an individual of his life and freedom without the authority of law”

IV. After A.V. Dicey

After Dicey came the theory of one of Dicey’s modern disciples, the Austrian economist Friedrich Hayek. Friedrich Hayek’s enthusiasm for the ideal of the rule of law as the focal point of a free society came from his examination of the idea of centralized economic planning.

Hayek improved his ideas from the interdisciplinary study of economics and political thoughts and compiled it in his work named “The road to serfdom”. Hayek incorporates his rule of law with essential philosophical standards, from one viewpoint, and an examination of ways to deal with public policy on the other.

He says in his book “that government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and plan one’s individual affairs based on this knowledge.”[11] During the 1970s, Hayek started to reexamine these concepts. The consideration was still on the ramifications of the Rule of Law for liberty.

He started thinking that if by binding the judge to the use of effectively enunciated principles, the predictability of the judge’s decisions increases. Thus, he came to support something distinct from Dicey, like a precedent-based evolution of common law, where the decisions are unique to every case and hence reducing the predictability with room for more development.

V. Conclusion

In its expansive sense, the rule of law is a liberal-democratic idea, epitomizing constitutionalism and limited governance, which is the ultimate aim of any state. It enforces important prerequisites upon how the law is made and carried out. For instance, it talks about the general application of the law, not to make it specific to a certain individual, group or situation.

It is, further, essential that citizens know their place; laws ought to be correctly framed, understood, and available to the general population. The rule of law is normally considered free of brutality and inhuman punishments. Most importantly, the onus is on the courts and the judiciary to be impartial, unbiased, and open to all.

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References

Books

1. The Rule of Law by Tom Bingham
2. An Introduction to Political Theory by O.P Gauba
3. Constitutional Law of India by Dr J N Pandey
4. Political Theory an Introduction by Andrew Heywood
5. Melvin Richter, Richard A. Cosgrove. The Rule of Law: Albert Venn Dicey, Victorian Jurist. (Studies in Legal History)

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Articles

1. Harvey, William Burnett, “The Rule of Law in Historical Perspective” (1961). Articles by Maurer Faculty. Paper 1168. Available Here
2. Alok Kumar Yadav “The rule of law”. International Journal of Law and Legal Jurisprudence Studies: ISSN:2348-8212:Volume 4 Issue 3
3. Michael L Principe, “Albert Venn Dicey and the Principles of the Rule of Law: Is Justice Blind? A Comparative Analysis of the United States and Great Britain”. Available Here

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Websites

1. The Rule of Law, Stanford Encyclopedia of Philosophy, Available Here
2. Ranjan, Vivek, Rule of Law and Modern Administrative Law (November 12, 2010). Available here

[1] Aristotle on Constitutionalism and the Rule of Law by Jill Frank, 2007

[2] Section 202 of Chap. XVIII “Of Tyranny” in Book II of the Two Treatises of Government by John Locke

[3] Introduction to the study of the law of constitution by A.V Dicey, 1989

[4] 3

[5] 3

[6] 3

[7] AIR 1951 SC 455

[8] AIR 1973 SC 14610

[9] 1967 SCR (2) 762

[10] (1976) 2 SCC 521

[11] HAYEK, The Road to Serfdom 72 (1944)

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2. Formal and Ideological Concept of Rule Of Law